Supreme Court Considers Integration in Schools

The Supreme Court hears arguments today in two cases that challenge affirmative action in public schools. In both cases, parents are challenging policies that use race as a factor in assigning their children to public schools. Dahlia Lithwick, legal analyst for the online magazine Slate, talks with Mike Pesca about the cases.

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MADELEINE BRAND, host:

This is DAY TO DAY from NPR News. I'm Madeleine Brand.

MIKE PESCA, host:

And I'm Mike Pesca. The Supreme Court today heard oral arguments in two cases that ask whether race can be considered to assign students to public schools. The plans in Louisville, Kentucky and Seattle, Washington were designed to prevent public schools from segregating along neighborhood lines. Parents in both communities sued. Federal appeals courts previously upheld the race-based programs that are being debated today.

Joining me to discuss what she heard in court is Dahlia Lithwick, legal analyst for DAY TO DAY and the online magazine, Slate. Hi, Dahlia.

DAHLIA LITHWICK: Hey, how are you Mike?

PESCA: I'm well. And the court heard two separate cases today. Similar plans -unless you want to tell me what the big differences were - by school districts in Seattle and Louisville. What are the parents of white children, as it happens, what are they objecting to here?

LITHWICK: Well, they're essentially saying, Mike, that look, race is race and you can't use it - not for good reasons, not for bad reasons, particularly when it's not clear anymore all these years after Brown that it even worked.

They say the 14th Amendment clearly forbids making decisions about school admission or anything else based on race. And that if it's bad to do it, you know, about reasons that had to do with civil rights, then it's equally bad to do it all these years later.

And essentially, they said - and they said this in the Seattle case - there are hundreds of children who are being denied school of their choice because of a simple matter of the color of their skin, and that's unacceptable. It's a pure argument about race is not something that you can use under the Constitution.

PESCA: Is that what happened here, the parents had kids who wanted to go to schools - nearby schools or whatever kind of schools - and they weren't allowed to go because they were white?

LITHWICK: That's - well, not necessarily white. It's not that simply. Some of the kids were sent to other schools to achieve balances going the other direction. But essentially, yes. Under both the Louisville plan and the Seattle plan, you had kids who were not given their first choice of schools for - often for racial reasons.

PESCA: What's the school districts arguments, justifying their plans?

LITHWICK: Well, they say, you know, first of all - and I think Justice Ginsburg made this point very forcefully today - how is it possible that the Constitution required this kind of race-conscious decision-making in schools? After Brown, they required it and, in fact, courts oversaw this for years after. And then one day it's simply unconstitutional to use this kind of race-conscious decision-making.

Essentially, they're saying look, we were trying to remedy something. We've gotten to the point where we've almost remedied it, and now you're telling us it's unconstitutional. That's preposterous. If we do away with these systems, it's fairly clear the schools are going to re-segregate themselves. So what they're essentially arguing is look, race is permissible in some circumstances, that's what Brown said. You can use race in some circumstances. We finally started to cure for that. Don't take this away.

Moreover, they say this is really popular. The parents like it. The school boards like it. These are systems that work. So just this pristine notion of what's constitutional shouldn't get in the way of this sort of pragmatic issue of this is working. It's starting to desegregate the schools.

PESCA: Will the justices' decision still be based largely on the 52-year-old case Brown vs. Board of Ed, or are there more recent cases that they could draw upon?

LITHWICK: Well, that's a good question, Mike. And one of the things that happened today was the court was sort of struggling to determine if this is, in fact, a desegregation case in the line of Brown cases, or if this an affirmative action case in the line of Bakke, which was the one that preceded the Michigan cases that the court only just recently heard.

And, obviously, if you think this is a desegregation case you're much more sympathetic to the school boards. If you think this is an affirmative action case, you become much more sympathetic to the parents. So it partly depends on how you sort of want to characterize this case. And one of the things that we saw a lot of this morning was different justices struggling to sort of characterize it or re-characterize it as one class of cases or the other.

PESCA: And finally, Dahlia, help me a little with the head count here. The last big affirmative action case was Michigan. There, Sandra Day O'Connor was the swing vote. Her vote allowed it to be a 5-4 decision, allowing for some race to be considered. Now that she's off the court, what's it look like the court is naturally inclined to do?

LITHWICK: Oh, boy. It looks like there were four on one side, four on the other and Justice Kennedy in the middle. Usually, he's pretty quiet, but today he made it sound like he really hated these plans. But he sort of likes the idea of still preserving the good that was achieved by Brown.

So how he's going to walk that line, I'm not sure, Mike. But he doesn't like these plans. He looks like he still does like the idea of the legitimacy of the legacy of Brown.

PESCA: High drama on the high court. Dahlia Lithwick is legal analyst for DAY TO DAY and the online magazine Slate. Thank you, Dahlia.

LITHWICK: My pleasure, Mike.

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